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Yesterday, the Ugandan Supreme Court ruled that Thomas Kowyelo’s trial should continue in the International Crimes Division (ICD) of the High Court. There is, at present, no full judgement available, so the court’s reasoning cannot be thoroughly digested at this stage. However, by allowing his trial to continue, the Supreme Court has effectively denied amnesty to Thomas Kwoyelo.

Thomas Kwoyelo awaits judgement in the Ugandan Supreme Court on 8 April 2015. (Photo: New Vision)

As noted previously on this blog, a ruling to this effect could have the potential to undermine or even invalidate thousands of amnesty certificates that have been issued by the Amnesty Commission since its creation under the Amnesty Act in the year 2000. Until the Supreme Court’s reasoning on the amnesty issue can be fully assessed, it is unclear how the court came to its decision. But, having been eligible for amnesty under the letter of the 2000 law, if Kwoyelo can now be prosecuted, what does that mean for every holder of an amnesty certificate in Uganda?

On 30 June, African Union (‘AU’) leaders voted to give themselves immunity from prosecution for crimes against humanity, war crimes and genocide before the nascent ‘African Court of Justice and Human Rights,’ by adopting the ‘Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights.’

What was originally intended to be a civil court for hearing human rights complaints will now be a fully-fledged criminal court with authority to deal with the most serious crimes, including genocide, war crimes, crimes against humanity and the crime of aggression. On a progressive note, other crimes such as piracy, mercenarism, corruption and money laundering will also fall within its international judicial mandate.

Thomas Kwoyelo awaits the start of his trial in Gulu, July 2011. Photo: Justice and Reconciliation Project

A few days ago, former Lord’s Resistance Army (‘LRA’) rebel commander, Thomas Kwoyelo, seemingly made a direct appeal to President Yoweri Museveni to be pardoned for crimes he is alleged to have committed in northern Uganda during the civil war. In an interview with the government-sponsored newspaper, the New Vision, Kwoyelo is quoted as saying:

“Having undergone various rehabilitation programmes, I have realised my past mistakes like any other Ugandan who erred.

I pray that the President gives me a second chance in life.” Kwoyelo, who is currently on a peacemaking and reconciliation programme, said he has benefited from the course and pledged to practice what he has learnt because it calls for reconciliation with God and the society he wronged.

“I am willing to work with the Government at all cost. Once considered for clemency, I swear never to go back to rebel activities,” he said.

This plea for clemency, and the timing of it, is intriguing for a number of reasons. But first, some background and context for those not familiar with the case of Thomas Kwoyelo.

On 21 May 2013, the Republic of Uganda became the first state in Africa to publish a comprehensive Draft Transitional Justice Policy. Six years after the Juba Peace negotiations between the Lord’s Resistance Army (‘LRA’) and the Government of Uganda (‘GoU’) ended without being formally signed by both parties, the GoU has committed itself to implementing an holistic Transitional Justice policy, designed to address issues of accountability, reparation and reconciliation in post-conflict Uganda. While still a ‘draft’ policy, it marks an historic step by the GoU in creating a framework designed to implement the provisions of the ‘Agreement on Accountability and Reconciliation’, Item no. 3 of the Juba Peace Agreement.

At the beginning of the Juba negotiations, Joseph Kony and his deputy Vincent Otti sit inside a tent at Ri-Kwamba in Southern Sudan. (Photo credit: CSMonitor)

In summary, the draft Ugandan policy provides for the following central interventions: